Opinion by
Philips, P. J.
While the judgment in this case is for a trivial snm, and should, ordinarily, in the interest of peace, be endured rather than occupy the attention and valuable time of the appellate courts with a review, yet the case presents a question alike important to the public and the railroad company.
Railroad corporations, in consideration of the grant by the state of a franchise, conferring upon them valuable rights and privileges, assume certain duties and burdens to the.public and the citizen. Among these is the obligation to provide and furnish suitable cars for carrying .passengers and transporting freight, to build and maintain stations and depots at necessary and reasonable points on their roads for the accommodation of the public taking passage on their cars and freighting over their line of road, and to afford every reasonable facility for procuring tickets, or the right of passage, and transportation of freight. As to such passenger trains, the citizen has the unquestionable right to enter them at any such station, or points where the passenger trains usually stop. And while the railroad companies may prescribe reasonable rules requiring persons, before taking passage on their passenger trains, to procure and exhibit tickets entitling them to ride thereon, yet, in .order to the enforcement of such regulation, they must provide every reasonable facility and opportunity to enable such passengers, without unnecessary detention and inconvenience, to first obtain such ticket. . In the absence of such facility and [165]*165opportunity they may neither reject a passenger applying to ride, nor eject him after he has entered the car without his having such ticket, if he offer to pay the usual fare.
But in respect of their trains for transporting freights a different principle obtains and is well recognized. Where they provide the requisite trains and cars for the accommodation of passengers, they have the right to pi escribe that passengers shall go upon them and not otherwise. In such case the law does not compel the company to carry passengers upon its freight trains. It requires it to carry both passengers and freight, “but leaves it to such corporation to regulate the manner in which the same shall be done.” — Ill. Cen. R. R. v. Nelson, 59 Ill. 110; Evans v. Mem. & Charlest. R. R., 56 Ala. 246; 18 Amer. Rwy. Rep. 350.
After providing both passenger and freight trains, the company may exclude passengers from the one and freight from the other. — Cleveland & Cin. R. R. Co. v. Bartman, 11 Ohio St. 459; Dunn v. G. T. Ry. Co., 58 Me. 187.
Likewise may the company, even where it permits passengers on its freight trains, require, as a condition to their admission, that they shall procure a ticket before entering the car. Such a regulation is not only reasonable, but may be necessary for the protection of the interests of the company.- — C. B. & T. R. R. v. Parks, 18 Ill. 460; Law v. R. R. Co., 32 Iowa 534.
Rorer, in his valuable Treatise on Railroads, vol. 2, p. 985, sect. 18, succinctly states the law as follows: *£ The law does not compel railroad corporations to carry passengers upon freight trains, nor freight in their passenger coaches; it only requires them to carry both, but leaves it to such corporations to regulate the manner in which the same shall be reasonably done. ■ It being a matter of choice with them whether, and upon-what terms, they will carry passengers upon trains for freight, the right, therefore, devolves on themselves to fix the.same, and it is held that it is not an unreasonable regulation [166]*166that they shall only be carried on freight trains by procuring tickets before entering thereon. * * * The company may make and enforce rules against carrying passengers upon freight trains; but if they hold themselves out to the public to carry passengers on such trains, then they are bound to carry accordingly to the extent, and in the manner, in which they thus profess to the public an intent to carry, and must afford a reasonable opportunity to obtain tickets as in other cases, or else may not discriminate as for want of tickets.”
The text is fully supported by many adjudications, and by Thompson on Carriers of Passengers, p. 343.
• Applying the law to the facts of this case, I am unable to see how we can sustain the judgment of the circuit court. There is little ground for controversy as to the material, controlling facts. The uncohtradicted evidence is, that the defendant provided the necessary passenger trains over its road at the point where the plaintiff entered defendant’s freight train. There is no claim made here that the passenger'train, did not afford reasonable accommodation for persons desiring to take passage at Sampsel station. The evidence' is equally clear that Sampsel was not then a regular station for the stopping of freight trains for passengers. There was no agent or depot in fact to enable plaintiff to' obtain .a ticket, and this fact he well knew before entering the caboose in question. It is also clear that the defendant had indicated on its printed time cards, posted in its depots and cabooses, that its freight trains did not stop at Sampsel for passengers. It furthermore appeared by the uncontradicted evidence, that the regulations of the company prohibited passengers from entering the freight cars, at any point, without having first procured a ticket from an agent of defendant. Every reasonable publicity was given by-defendant, for three months prior to the occasion in question, of this regulation. An impartial and attentive reading of the evidence in this record leaves no reasonable doubt that the plaintiff knew, of had every [167]*167just reason to believe, that he would not be permitted to ride on the freight train without having provided himself with a ticket. ■ This is evident to my mind from the fact that on the day and before entering the car, he tried to obtain a ticket from a friend in Sampsel. He also was in the,habit of travelling over this road. The regulation in question was conspicuously posted in all the depots and cabooses of the road. He knew others had been expelled from the cars for not having tickets. He himself, for some unexplained reason, had, only a month or so previous, been ejected from one of defendant’s freight trains on this same portion of road. He was also present on a freight train and heard the conductor tell another passenger that the rules of the company forbade him from carrying passengers on his train without a ticket, and that he could not accept from him the money in lieu of such ticket.
On this showing, the case being before the judge as the trier of both fact and law, we .are of the opinion the - instruction asked by. defendant, that, on the law and the evidence, the verdict should be for the defendant, should have been given.
The first predicate of the instruction given on behalf of plaintiff was that the defendant should have carried passengers from and to Sampsel station regularly on its freight trains and held itself out ready to do so, and that plaintiff had applied in vain at defendant’s depot for a ticket.
As we have already shown, from the mere statement of the evidence, the facts essential to support this declaration of law are wanting.
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Opinion by
Philips, P. J.
While the judgment in this case is for a trivial snm, and should, ordinarily, in the interest of peace, be endured rather than occupy the attention and valuable time of the appellate courts with a review, yet the case presents a question alike important to the public and the railroad company.
Railroad corporations, in consideration of the grant by the state of a franchise, conferring upon them valuable rights and privileges, assume certain duties and burdens to the.public and the citizen. Among these is the obligation to provide and furnish suitable cars for carrying .passengers and transporting freight, to build and maintain stations and depots at necessary and reasonable points on their roads for the accommodation of the public taking passage on their cars and freighting over their line of road, and to afford every reasonable facility for procuring tickets, or the right of passage, and transportation of freight. As to such passenger trains, the citizen has the unquestionable right to enter them at any such station, or points where the passenger trains usually stop. And while the railroad companies may prescribe reasonable rules requiring persons, before taking passage on their passenger trains, to procure and exhibit tickets entitling them to ride thereon, yet, in .order to the enforcement of such regulation, they must provide every reasonable facility and opportunity to enable such passengers, without unnecessary detention and inconvenience, to first obtain such ticket. . In the absence of such facility and [165]*165opportunity they may neither reject a passenger applying to ride, nor eject him after he has entered the car without his having such ticket, if he offer to pay the usual fare.
But in respect of their trains for transporting freights a different principle obtains and is well recognized. Where they provide the requisite trains and cars for the accommodation of passengers, they have the right to pi escribe that passengers shall go upon them and not otherwise. In such case the law does not compel the company to carry passengers upon its freight trains. It requires it to carry both passengers and freight, “but leaves it to such corporation to regulate the manner in which the same shall be done.” — Ill. Cen. R. R. v. Nelson, 59 Ill. 110; Evans v. Mem. & Charlest. R. R., 56 Ala. 246; 18 Amer. Rwy. Rep. 350.
After providing both passenger and freight trains, the company may exclude passengers from the one and freight from the other. — Cleveland & Cin. R. R. Co. v. Bartman, 11 Ohio St. 459; Dunn v. G. T. Ry. Co., 58 Me. 187.
Likewise may the company, even where it permits passengers on its freight trains, require, as a condition to their admission, that they shall procure a ticket before entering the car. Such a regulation is not only reasonable, but may be necessary for the protection of the interests of the company.- — C. B. & T. R. R. v. Parks, 18 Ill. 460; Law v. R. R. Co., 32 Iowa 534.
Rorer, in his valuable Treatise on Railroads, vol. 2, p. 985, sect. 18, succinctly states the law as follows: *£ The law does not compel railroad corporations to carry passengers upon freight trains, nor freight in their passenger coaches; it only requires them to carry both, but leaves it to such corporations to regulate the manner in which the same shall be reasonably done. ■ It being a matter of choice with them whether, and upon-what terms, they will carry passengers upon trains for freight, the right, therefore, devolves on themselves to fix the.same, and it is held that it is not an unreasonable regulation [166]*166that they shall only be carried on freight trains by procuring tickets before entering thereon. * * * The company may make and enforce rules against carrying passengers upon freight trains; but if they hold themselves out to the public to carry passengers on such trains, then they are bound to carry accordingly to the extent, and in the manner, in which they thus profess to the public an intent to carry, and must afford a reasonable opportunity to obtain tickets as in other cases, or else may not discriminate as for want of tickets.”
The text is fully supported by many adjudications, and by Thompson on Carriers of Passengers, p. 343.
• Applying the law to the facts of this case, I am unable to see how we can sustain the judgment of the circuit court. There is little ground for controversy as to the material, controlling facts. The uncohtradicted evidence is, that the defendant provided the necessary passenger trains over its road at the point where the plaintiff entered defendant’s freight train. There is no claim made here that the passenger'train, did not afford reasonable accommodation for persons desiring to take passage at Sampsel station. The evidence' is equally clear that Sampsel was not then a regular station for the stopping of freight trains for passengers. There was no agent or depot in fact to enable plaintiff to' obtain .a ticket, and this fact he well knew before entering the caboose in question. It is also clear that the defendant had indicated on its printed time cards, posted in its depots and cabooses, that its freight trains did not stop at Sampsel for passengers. It furthermore appeared by the uncontradicted evidence, that the regulations of the company prohibited passengers from entering the freight cars, at any point, without having first procured a ticket from an agent of defendant. Every reasonable publicity was given by-defendant, for three months prior to the occasion in question, of this regulation. An impartial and attentive reading of the evidence in this record leaves no reasonable doubt that the plaintiff knew, of had every [167]*167just reason to believe, that he would not be permitted to ride on the freight train without having provided himself with a ticket. ■ This is evident to my mind from the fact that on the day and before entering the car, he tried to obtain a ticket from a friend in Sampsel. He also was in the,habit of travelling over this road. The regulation in question was conspicuously posted in all the depots and cabooses of the road. He knew others had been expelled from the cars for not having tickets. He himself, for some unexplained reason, had, only a month or so previous, been ejected from one of defendant’s freight trains on this same portion of road. He was also present on a freight train and heard the conductor tell another passenger that the rules of the company forbade him from carrying passengers on his train without a ticket, and that he could not accept from him the money in lieu of such ticket.
On this showing, the case being before the judge as the trier of both fact and law, we .are of the opinion the - instruction asked by. defendant, that, on the law and the evidence, the verdict should be for the defendant, should have been given.
The first predicate of the instruction given on behalf of plaintiff was that the defendant should have carried passengers from and to Sampsel station regularly on its freight trains and held itself out ready to do so, and that plaintiff had applied in vain at defendant’s depot for a ticket.
As we have already shown, from the mere statement of the evidence, the facts essential to support this declaration of law are wanting.
The latter part of the instruction would seem to advance the proposition that it was the duty of the company absolutely to furnish facilities for obtaining tickets for passengers on its freight trains, notwithstanding its time-table to the contrary, and notwithstanding the plaintiff may have known of said regulations at the time he entere^, the caboose. It was doubtless because of the [168]*168entertainment by the learned judge of the idea that the law demands of the company the maintenance of depots, agents, and tickets for passage on its freight trains as well as on its passenger trains, that he saw his way to a verdict for the plaintiff.-
There are cases, such as those of Railroad Co. v. Kesser (18 Kan. 523); C. & A. R. R. v. Flagg (43 Ill. 364); I. C. R. R. v. Johnson (67 Ill. 312); Myrtle v. Rwy. (51 Ind. 566); and Evans v. M. & C. R. R. Co. (56 Ala. 246), which go far towards fixing a liability on the companies. Bat a careful examination of the decisions shows that they announce no doctrine in conflict with this opinion. As is observed in Rutledge v. H. & St. Jo. R. R. (78 Mo. 291): “ They afford an illustration of a truth which good practioners too often overlook, that a principle of law remains the same, but the particular facts of each case may limit the application.” They rest mainly on the facts that the company either habitually carried passengers on its freight trains, or held itself out to the public as so doing, or had failed to give any notice of its regulations requiring passengers to provide themselves with tickets, or failed, at an established depot where it kept tickets for sale, to afford the passenger an opportunity to procure a ticket in time to get on the train. We have been unable to find any respectable authority which goes to the extent of justifying a recovery under facts and circumstances similar to these disclosed in this record.
The plaintiff, entering the caboose under the circumstances and with the knowledge he had, was in no better situation than a trespasser, and his offer to pay the fare to the conductor did not alter his right or his liability.
It follows that the judgment of the circuit court is reversed.
All concur.